Appeals, Nos. 32 and 33, Jan. T., 1951, from decree of Orphans' Court of Bucks County, No. 20788, in Estate of Washington Atlee Burpee, Deceased. Decree affirmed.
William c. Bodine, with him Joseph F. Tilghman, Philip L. Leidy, Thomas Ross, Pepper, Bodine, Stokes & Hamilton and Ross & Smith, for appellants.
Irving N. Kieff, Deputy Attorney General, with him Francis J. Gafford, Deputy Attorney General and Robert E. Woodside, Attorney General, for appellee.
Before Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeals concern the construction of a portion of the will of Washington Atlee Burpee, deceased, and of an inter vivos trust deed or agreement which incorporates the testamentary provisions by reference. The question is whether testator's widow, Blanche S. Burpee, was possessed of a defeasible fee or whether such interest constitutes a life estate. There is no controversy between
the parties. The construction determines inheritance tax liability.
Testator, Washington Atlee Burpee, died November 26, 1915, leaving to survive his widow, Blanche S. Burpee, (who died unmarried November 10, 1948) who elected to take under the will, and three sons: W. Atlee Burpee, Jr., David Burpee and Stewart Alexander Burpee (the latter for reasons unnecessary to recite has no interest in this case). Under Item 8 (a) of the will, dated May 27, 1913, testator provided: "I give and bequeath the one-third part of all my personal estate... unto my said wife absolutely...." (Emphasis supplied)
The item continues: "... provided however, that as to the one third of my personal estate herein bequeathed, to my said wife so much of the same as shall amount to the one-third interest in the capital invested in my seed business, so long as it shall be continued after my death by my executors or controlled by my sons, David Burpee and Washington Atlee Burpee, Jr., or either of them as hereinafter directed, shall remain in and be applied to and used in said business, she to participate and share in the profits therefrom to the extent of her said one-third interest, but not to be used to prevent or interfere with the control of said business by my executors or said sons. But in the event of her remarriage, I direct that her right to share in the said profits shall cease, and that the value of her share in said business, to be computed from and as of the last preceding inventory and book value of said capital, excluding any allowance for good will shall be paid to her in cash, or at her election, exercised within ten days of such remarriage, the amount of her one-third interest in said capital or business as a loan, to be evidenced by a note or notes which shall be of a non-negotiable character, but held for the purpose of evidencing the indebtedness, from year to year, beginning at the time of my death, she receiving interest thereon at six percent per annum. Upon failure
to pay said interest within thirty days after the same shall become due, she shall have the right to demand and receive the principal of such loan. After my said sons or either of them shall acquire control of said business, should the aforesaid contingencies of a remarriage of my widow and the creation of a loan arise, then they, he or she may terminate said loan upon three months ...